NCAA revenue sharing: Trump administration rescinds Biden's Title IX Policy, NIL guidance
- The Department of Education under the Trump administration rescinded guidance from the Biden administration stating that NIL compensation is subject to Title IX compliance.
- The Biden administration's guidance argued that NIL compensation is considered "athletic financial assistance" and should be distributed equitably between men's and women's programs.
- The Department of Education under the Trump administration believes that the Biden administration's guidance was overly burdensome and lacked legal justification.
In the final days of President Joe Biden's administration, the Department of Education's Office of Civil Rights released a fact sheet saying Name, Image, and Likeness compensation would be subject to Title IX compliance.
Less than a less a month under the Donald Trump administration, the Department of Education has officially rescinded the guidance, according to a press release put out by the Office of Civil Rights (OCR) on Wednesday morning.
The guidance, which the Biden administration released just four days before President Trump's inauguration, reminded all schools that receive federal funding that NIL compensation is considered "athletic financial assistance", and that compensation must be distributed equitably (not equally) between men's and women's programs.
This guidance threw a wrench in the proposed revenue-sharing model, which had most schools reinvesting upwards of 70 percent of their allotted revenue-share pool back into football. The OCR's fact sheet all but ruled that would be a violation of Title IX compliance ahead of the House vs. NCAA Settlement.
Department of Education reverse course on revenue-sharing Title IX guidance
The new-look Department of Education is saying that guidance has no basis, and will not be enforced. The Biden administration's previous guidance has been removed from the OCR's policy guidance portal.
"Enacted over 50 years ago, Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student athletes," Acting Assistant Secretary for Civil Rights Craig Trainor said in a press release. "The claim that Title IX forces schools and colleges to distribute student-athlete revenues proportionately based on gender equity considerations is sweeping and would require clear legal authority to support it. That does not exist. Accordingly, the Biden NIL guidance is rescinded."
The OCR says the previous guidance placed an undue burden on schools and had no legal ground to stand on.
"The NIL guidance, rammed through by the Biden Administration in its final days, is overly burdensome, profoundly unfair, and it goes well beyond what agency guidance is intended to achieve," the release said. "Without a credible legal justification, the Biden Administration claimed that NIL agreements between schools and student athletes are akin to financial aid and must, therefore, be proportionately distributed between male and female athletes under Title IX."
Title IX reverting back to previous interpretation
The new guidance comes in the wake of sweeping changes within the Department of Education. A 'Dear Colleague' letter that was released on Feb. 4 by the Department served as a Title IX enforcement directive and shifts the Department's framework for Title IX from the 2024 Rule to the 2020 Rule. The letter was also released by Trainor and was the first guidance added to the policy guidance portal under the new administration.
Trainor previously served as Senior Special Council to the House Judiciary Committee before being named acting Assistant Secretary for Civil Rights and Deputy Assistant Secretary for Policy. He also was a criminal defense attorney in New York for a decade and served in the strategic litigation arm of the America First Institute, according to his Linkedin profile and his page on the Federalist Society's website.
"In light of the recent federal court decision vacating the 2024 Title IX Rule, and consistent with President Trump’s Defending Women Executive Order, the binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule and the longstanding Title IX regulations outlined in 34 C.F.R. 106 et seq., but excludes the vacated 2024 Title IX Rule. Accordingly, open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to ensure consistency with the requirements of the 2020 Title IX Rule and the preexisting regulations at 34 C.F.R. 106 et seq," the letter said."
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